The immigration status of foreign nationals have increasingly become a barrier to accessing healthcare in Gauteng, especially for migrant pregnant women and children. This is despite the legislative framework governing health in South Africa providing that the State must provide these two vulnerable categories of persons free healthcare.

Senior Associate of the Pro Bono and Human Rights practice at Cliffe Dekker Hofmeyr, Elgene Roos says that access to health services is a basic human right guaranteed by the Constitution of South Africa.

“The Constitution states that all have the right to have access to healthcare, and no one may be refused emergency medical treatment."

Yet this is not the case in instances where migrant pregnant or lactating women and children under the age of six, are seeking care within central hospitals in Gauteng.

Roos highlights a recent matter stemming from migrant women and children who were continually denied free access to health services, despite the provisions of the National Health Act.

“Section 4(3) of the National Health Act provides that pregnant and lactating women, and children below the age of six years must be provided with free health services unless they are a member or beneficiaries of medical schemes. This seeks to ensure that everyone has access to healthcare, regardless of their immigration status,” says Roos.

However, Roos says, there is a disconnect between national legislation and subordinate legislation governing health in Gauteng. This has resulted in a confusing myriad of legislation, regulations and policies, which do not align with the tenets of the National Health Act and the Constitution.

“Due to this confusion, hospitals have adopted policies and/or practices that are being interpreted incorrectly and relied upon as justification for denying qualifying women and children free health care."

She continues, “fighting to ensure pregnant and lactating migrant women and children can access healthcare services as they are entitled, is a vital part of focusing on the right to health and education, regardless of immigration status”.